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Judgment
Norman Macleod, Kt., C.J.
1.The question in this second appeal is whether defendant No. 4, the present appellant, is entitled to rely on Exhibit 36 as preventing a forfeiture of the lands conveyed to him under a sale-deed referred to in that exhibit, on the ground that the consent of the Khot had not been obtained. Exhibit 36 was given to the appellant by defendant No. 5 the managing Khot for a consideration of Rs. 100. It has been contended that although he was a managing Khot he did not execute the deed in his representative capacity, but that is a mere formality and could not be regarded as fatal to the appellant''s contention. Admittedly defendant No. 5 at the time he executed Exhibit 36 was the managing Khot, and therefore, the real question is whether his consent to the transfer came within the meaning of Section 9 of the Khoti Settlement Act which provides that permanent tenancies shall be heritable, but not otherwise transferable without the consent of the Khot, unless certain facts can be proved.
It has been urged for the respondent that the consent of the Khot meant the consent of the whole body of the Khoti sharers. But the result of such a contention, if upheld, would be that the transfer of a permanent tenancy would practically be prohibited as the consent of the whole body of the Khoti sharers could not ordinarily be procured. We do not see why it should not be within the ordinary duties of a managing Khot to consent to a transfer of a permanent tenancy. In this case Rs. 100 were paid to the fifth defendant as consideration for the consent, and undoubtedly he holds that Rs. 100 on behalf of the whole body of the Khoti sharers. Reference may usefully be made to Section 26 of the Act:--
"When a village is held by two or more co-sharers jointly, the said sharers shall be jointly and severally responsible for the jama, but one of their number shall be nominated every year to receive inferior holders'' rents, to pay the Government dues, and generally to perform all acts required by this Act or by any other law or rule having the force of law, to be performed by the khot. The sharer so nominated shall be called ''the managing khot".
The managing Khot would, therefore, be entitled to give consent to the transfer of a permanent tenancy which is an act required by the Statute to be performed by the Khot in order to validate the transfer.
We think, therefore, that defendant No. 4 is entitled to resist the plaintiff''s claim and that the suit should be dismissed with costs throughout.